Alex Kozinski

Alex Kozinski

Alex Kozinski

It's the week before oral argument and the office--known somewhat pretentiously as "chambers"--is bustling. One week a month, eight months out of the year, I am assigned to an oral argument calendar with two of my colleagues on the U.S. Court of Appeals for the 9th Circuit. Arguments are heard throughout our far-flung territory; next week's calendar is in Anchorage. About five weeks ago the briefs and records for the Anchorage cases arrived in the office, thousands of pages filling a dozen or more boxes. My three law clerks divided the cases between them, and recruited six externs, law students who are spending the summer with us, to help us digest the masses of documentation.

When they first come in, the cases--some 35 of them--are only names: United States vs. Doe; Smith vs. Jones Corp.; In re Insolvent Q. Debtor. As the law clerks and externs start reading and talking about the briefs, the cases come into focus--each a story of someone's usually unfortunate entanglement with the law. Memoranda from the three judges' offices start flowing over the court's e-mail system; we begin to make decisions, sometimes dispositive ones, long before the cases are even supposed to be heard.

"Smith vs. Jones Corp. is a simple contract dispute controlled by the law of Alaska. There is Alaska Supreme Court authority directly on point," one of my colleagues writes. "I believe the case can be submitted on the briefs." Submitting a case on the briefs means that there will be no oral argument, as it would be a waste of the court's time and the clients' money to have the lawyers come and argue a case where the result is preordained.

"Appellant in United States vs. Jones has filed a motion to move the argument from Thursday to Tuesday, as his lawyer is tied up in trial. I vote to grant the motion," another colleague writes. My law clerks offer their recommendations and we send consent by e-mail in both cases. Slowly, the argument calendar is pared and shaped, leaving us plenty of time to focus our attention on the cases raising the most difficult issues.

Advertisement

As argument week approaches, the law clerks and externs carefully review each of the cases and present them to me in memos and conversation. They analyze the issues, pull out key portions of the records, and gather the relevant authorities. All the materials are then put in briefing books that I consult, in conjunction with the parties' own submissions, as I prepare for the sitting. Careful preparation for argument is important, not only because it helps me to engage in meaningful colloquy with the lawyers about their cases, but also because it enables me to vote at post-argument conferences with my colleagues.

Meanwhile, work on other cases continues. I am making progress on a dozen or so opinions or dissents from prior calendars; reviewing opinions circulated by my colleagues; writing memos to my colleagues about their opinions; responding to memos they have sent me. The flow never abates. During the course of a year, each of our judges decides some 300 cases.

After more than 10 years as a judge of this court, I find that the flow of cases begins to resemble a moving train, with each window revealing a still life of an individual human drama. The sheer volume of cases, and the fact that we rarely see the faces of the participants--just written words on paper and, sometimes, the arguments of lawyers--makes it difficult to remember that there are human beings somewhere looking to us with hope and yearning for a decision in their favor. The law, too, is quite complex. Cases often turn on legal technicalities that bear only a tangential relationship to concepts such as fairness and equity. Justice, we tell ourselves--and I do believe this--is done if the law is applied without regard to the outcome in a particular case.

One of my law clerks walks in to talk about an opinion he has been drafting. The plaintiff has a strong case on the merits, and presents a heartbreaking human tragedy. But there is a difficult statute of limitations question; the case may have to be dismissed. We've been discussing the case for several days, looking for a credible way to vault the limitations hurdle. We find none. We try another approach, but to no avail. Could I write an opinion that steps around the issue? That would fudge the facts just a little bit to make it come out right? Who would really care, except, of course, the defendant? I'm tempted but can't see my way to doing it. Is it a matter of principle or a subtle form of hubris?

Advertisement

There is a story, no doubt apocryphal, about the lawyer who fights ferociously for his client in a criminal case. He is brilliant in his cross-examination, moving in his summation. The jury, nevertheless, comes back with a conviction.

"Where do we go from here?" the frightened and bewildered client asks the lawyer.

"Well," the lawyer answers, "I'm going home and you're going to jail."

Lawyers and judges, the professionals of the legal system, do their best to untangle the painful knots created by human interactions, but ultimately they must disengage lest they be sucked into the vortex. My law clerk and I go over the case one more time but find no solution. I take a deep breath and turn back to preparing for next week's calendar.